When did Virginia start hiding concealed handgun permit information from the public, and does it cover permits issued before that date?

Plain-English summary

In the 2013 session, the General Assembly amended Va. Code § 18.2-308(D) to require clerks of court to withhold from public disclosure "the applicant's name and any other information contained in a permit application or any order issuing a concealed handgun permit, except that such information shall not be withheld from any law-enforcement officer acting in the performance of his official duties." The amendment was part of 2013 Va. Acts ch. 659, and was scheduled to be recodified as the new Va. Code § 18.2-308.02.

The Caroline County Circuit Court Clerk asked the AG four practical questions about implementation:

1. When does it take effect? The default rule is that laws enacted at a regular session take effect on the first day of July following adjournment, unless a different date is specified. The 2013 amendment specified no other effective date. So it took effect July 1, 2013.

2. Does it apply to old applications? Yes. The statute's duty is prospective in operation (clerks must withhold from July 1 forward), but the plain language places no limits based on filing or issuance date. The duty is to withhold "information contained in a permit application or any order issuing a concealed handgun permit," full stop. Had the General Assembly wanted to limit the rule to new applications, it would have said so (as it did in § 32.1-267(F), which limits the marriage license privacy provision to "marriage licenses filed on and after July 1, 1997").

So a permit application from 2005 is just as confidential after July 1, 2013, as one filed July 2. The clerk has to withhold from the moment the request is made on or after the effective date, regardless of when the underlying record was created.

3. Does it cover references in order books? Yes. Clerks routinely record references to court orders in "Civil Books" or "Miscellaneous Books" (collectively, "Order Books"), which may be maintained electronically or in paper, and which are accessible to the public. The statute prohibits disclosure of "information contained in" any order issuing a concealed handgun permit. That language reaches references in order books just as it reaches the orders themselves. Otherwise, the purpose of the amendment would be defeated by leaving an alternative public access path.

The AG noted that redacting information from order books going forward is "consistent with the clerk's prospective duty, beginning on July 1, 2013, to withhold this information from the public" and "does not result in a retroactive application of the statute." The redaction is a way of fulfilling the prospective non-disclosure obligation; it is not undoing past disclosures.

4. Does the clerk have to comply without funding? Yes. The General Assembly has broad legislative authority under Va. Const. art. IV, § 14. Nothing in the Virginia Constitution requires the General Assembly to fund a particular duty it imposes on a constitutional officer like a circuit court clerk. The clerk's oath of office requires faithful and impartial discharge of duties, including statutory ones. The clerk must comply.

The AG also noted that the statute doesn't specify how the clerk must implement the withholding requirement. Clerks have discretion to choose efficient methods (electronic redaction tools, file segregation, manual workflow changes), subject to actually accomplishing the legal duty.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, Va. Code § 18.2-308.02 (the recodified provision) has been amended multiple times since 2013, including changes to the carve-outs for law enforcement and other parties. The general non-disclosure rule has remained in place, but specific details should be verified.

Common questions

What's the purpose of withholding concealed handgun permit information?
The 2013 amendment was a response to incidents in 2007 and 2012 where newspapers had published the names and addresses of concealed handgun permit holders compiled from court records. The General Assembly determined that such public disclosure created safety and privacy concerns for permit holders and removed permit information from the public record.

Who can still see permit information?
Law enforcement officers acting in the performance of their official duties. The statute creates an exception for them but for no one else. Members of the public, journalists, researchers, and even other government employees acting in non-law-enforcement capacities cannot get the information.

Does this apply to news media too?
Yes. The statute makes no exception for media. The General Assembly was specifically responding to media publications of permit data.

Does the rule apply to permits issued in other states?
The statute addresses Virginia concealed handgun permits. Virginia recognizes some out-of-state permits under reciprocity provisions, but the records of those out-of-state permits are not held by Virginia clerks and are governed by the issuing state's laws.

What if someone got a copy of permit records before July 1, 2013?
The statute does not (and probably could not constitutionally) require third parties to return or destroy records they already obtained legally. The withholding obligation runs against the clerk going forward; it does not unwind past disclosures.

What if a clerk discloses permit information after July 1, 2013?
That would be a violation of statutory duty. The opinion does not address specific consequences (whether civil, administrative, or criminal), but the clerk would be in breach of the obligation.

Are concealed handgun permit holders' identities confidential in other contexts (driver's license records, etc.)?
Probably not under § 18.2-308(D); the statute addresses the clerk's records. Other access points (DMV records, voter registration, etc.) are governed by their own statutes.

Can a permit holder consent to disclosure?
The statute does not address consent. As a practical matter, a permit holder could disclose their own permit information (the statute doesn't bind the holder), but the clerk is not authorized to disclose to a third party even with the holder's permission.

Background and statutory framework

The statutory framework:

• Va. Code § 18.2-308(D) (as amended by 2013 Va. Acts ch. 659): the new non-disclosure requirement.
• Va. Code § 18.2-308.02: the section into which the non-disclosure rule was to be recodified.
• Va. Code § 1-214(A) and Va. Const. art. IV, § 13: default July 1 effective date.
• Va. Code § 1-238: "reenacted" definition; prospective application unless retroactive specified.
• Va. Code §§ 17.1-200 through 17.1-295: general duties of circuit court clerks.
• Va. Const. art. II, § 7: oath of office for constitutional officers.
• Va. Const. art. IV, § 14: General Assembly's broad legislative power.

The interpretive moves:

• Plain language controls; assume the General Assembly chose its words with care (Williams, Alger, Barr).
• The absence of a limiting clause (compare § 32.1-267(F)) means no limit was intended.
• The prospective duty to withhold reaches all existing records, because withholding is the current act.
• Order book references are "information contained in" the order; the prohibition reaches both the orders themselves and references.
• General Assembly's authority does not require appropriations for every duty imposed (Harrison v. Day).

Citations

• Va. Code § 18.2-308(D)
• Va. Code § 18.2-308.02
• Va. Code § 1-214(A)
• Va. Code § 1-238
• Va. Code §§ 17.1-200 through 17.1-295
• Va. Code § 32.1-267(F)
• Va. Const. art. II, § 7; art. IV, §§ 13, 14
• 2013 Va. Acts ch. 659
• Haslip v. S. Heritage Ins. Co., 254 Va. 265, 492 S.E.2d 135
• Williams v. Commonwealth, 265 Va. 268, 576 S.E.2d 468 (2003)
• Vaughn, Inc. v. Beck, 262 Va. 673, 554 S.E.2d 88 (2001)
• Thomas v. Commonwealth, 256 Va. 38, 501 S.E.2d 391 (1998)
• Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563 (2004)
• Barr v. Town & Country Props., Inc., 240 Va. 292, 396 S.E.2d 672 (1990)
• Harrison v. Day, 201 Va. 386, 111 S.E.2d 504 (1959)
• 2002 Op. Va. Att'y Gen. 273
• 2003 Op. Va. Att'y Gen. 60
• 2009 Op. Va. Att'y Gen. 178
• 2010 Op. Va. Att'y Gen. 17
• 2010 Op. Va. Att'y Gen. 92
• 2011 Op. Va. Att'y Gen. 18
• 2012 Op. Va. Att'y Gen. 84

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-036_Campbell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 12, 2013

The Honorable Ray S. Campbell, Jr.
Clerk of the Circuit Court for Caroline County
Post Office Box 309
Bowling Green, Virginia 22427

Dear Mr. Campbell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire regarding the duties of the clerk of court pursuant to recent amendments to § 18.2-308(D) of the Code of Virginia, which prohibits the disclosure of certain information related to concealed handgun permits. You specifically inquire as to the effective date of the amendment. You also ask whether the amendment applies to applications and orders processed prior to the effective date of the enactment. You inquire similarly whether the prohibition encompasses references to orders granting applications that are recorded in "Order Books." Finally, you ask whether the clerk must take measures to comply with the new provisions despite the General Assembly's decision to not allocate funds to the clerk for this purpose.

Response

It is my opinion that the amendments to § 18.2-308(D) took effect on July 1, 2013. It is further my opinion that beginning on July 1, 2013, the clerk of court must withhold from public disclosure the applicant's name and other information contained in all concealed handgun permit applications and orders, including those filed prior to the effective date. It is further my opinion that the clerk must withhold from public disclosure court orders issuing such permits, whether they are maintained electronically or in "Order Books." Finally, it is my opinion that the clerk is required to comply with this statute, irrespective of receiving any funding from the General Assembly.

Applicable Law and Discussion

During its 2013 session, the General Assembly amended § 18.2-308(D) of the Code of Virginia to require that "[t]he clerk of court shall withhold from public disclosure the applicant's name and any other information contained in a permit application or any order issuing a concealed handgun permit, except that such information shall not be withheld from any law-enforcement officer acting in the performance of his official duties."[1]

You first inquire as to the effective date of this amendment. "All laws enacted at a regular session ... shall take effect on the first day of July following the adjournment of the session of the General Assembly at which they were enacted, unless a subsequent date is specified."[2] The amendment to § 18.2-308(D) was approved during the 2013 General Assembly regular session, and it contains no provision setting forth another effective date. I therefore conclude that the amendment became effective on July 1, 2013.

To respond to your next two inquiries, I rely on basic principles of statutory construction. Accordingly, "[i]n deciding the meaning of the statute, we must consider the plain language that the General Assembly employed in enacting the statute."[3] "[W]e determine the General Assembly's intent from the words contained in the statute[,]"[4] and "[w]e 'assume that the legislature chose, with care, the words it used when it enacted the relevant statute.'"[5]

Beginning July 1, 2013, the amendment to § 18.2-308(D) imposes a duty on the clerk to withhold certain information pertaining to concealed weapon permits.[6] Although this duty is prospective, the plain language of the statute does not place any limits on this duty based on filing or issuing dates. Rather, the statute evidences the General Assembly's intent to prohibit public access to all applications and orders as of July 1, 2013, irrespective of the application date or the date of entry. If the General Assembly had intended to limit application of the amendment to only new orders and applications, it would have provided for such in the language of the statute.[7] Accordingly, it is my opinion the clerk of court must withhold from public disclosure the applicant's name and other information contained in all concealed handgun permit applications and orders issuing such permits, including those applications and orders filed prior to July 1, 2013.

You also inquire whether the clerk must withhold from disclosure references to orders issuing permits when such references are contained in the clerk's "Order Books." You relate the usual practice is to file the order in the clerk's "Civil Book" or "Miscellaneous Book" (the "Order Books"), which may be maintained electronically or on paper, and are accessible to the public. The plain text of the statute expressly prohibits disclosure of "information contained in a permit application or any order issuing a concealed handgun permit."[8] The prohibition is not limited to the permits and orders themselves. Thus, the clerk must not permit disclosure of such information, regardless of where it is filed. It would defeat the purpose of the amendment if this information were to be publicly available in the clerk's "Order Books." I therefore conclude that to the extent information contained in an "Order Book" references the name or other information of an individual subject to such an order, such reference must be withheld from the public.[9]

Finally, you ask whether the clerk of court is required to comply with the statute even though the General Assembly has not allocated funds for that purpose. The duties of the office are prescribed by the General Assembly and include keeping records of the proceedings in circuit court, providing access to such records, and maintaining and purging records.[10] Section 18.2-308(D), as amended, is a general law imposing a statutory duty on the clerk to maintain records in a certain manner. Requiring clerks of court to withhold this information without appropriating funds does not exceed the authority of the General Assembly because the authority of the General Assembly extends to all subjects of legislation not otherwise forbidden or restricted.[11] The Clerk of Court, as a constitutional officer, must abide by the law and his oath of office, which requires him "faithfully and impartially discharge all the duties incumbent upon [him] as [Clerk of Court] ...."[12] Consequently, the clerk must comply with the statute notwithstanding the non-allocation of funds.

Conclusion

Accordingly, it is my opinion that the amendment to § 18.2-308(D) took effect on July 1, 2013. It is further my opinion that beginning on July 1, 2013, the clerk of court must withhold from public disclosure the applicant's name and other information contained in all concealed handgun permits. It is further my opinion that the clerk must withhold from public disclosure court orders issuing such permits, whether they are maintained electronically or in "Order Books." Finally, it is my opinion that the clerk is required to comply with this statute even though the General Assembly did not appropriate funds for this task.[13]

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] 2013 Va. Acts ch. 659, to be recodified as the new Va. Code Ann. § 18.2-308.02.

[2] Va. Const. art. IV, § 13; accord Va. Code Ann. § 1-214(A) (2011).

[3] 2011 Op. Va. Att'y Gen. 18, 19 (quoting Haslip v. S. Heritage Ins. Co., 254 Va. 265, 268, 492 S.E.2d 135, 137).

[4] Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003) (citing Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001); Thomas v. Commonwealth, 256 Va. 38, 41, 501 S.E.2d 391, 393 (1998)).

[5] Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563, 566 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)).

[6] Section 1-238 (2011) ("'Reenacted,' ... means that the changes enacted to a section of the Code of Virginia or an act of the General Assembly are in addition to the existing substantive provisions in that section or act, and are effective prospectively unless the bill expressly provides that such changes are effective retroactively on a specific date."); see also 2002 Op. Va. Att'y Gen. 273, 276.

[7] Compare 2013 Va. Acts ch. 659, with Va. Code Ann. § 32.1-267(F) (2011) ("marriage licenses filed on and after July 1, 1997," which disclose a social security number or control number, "shall not be available for general public inspection in the offices of clerks of the circuit courts"). Cf. 2012 Op. Va. Att'y Gen. 84, 86 (explaining that because the General Assembly provided for the charge of returned check fees only in criminal cases, a court could not charge such a fee in civil cases).

[8] 2013 Va. Acts ch. 659 (emphasis added).

[9] Redaction of certain information contained within an Order Book does not result in a retroactive application of the statute. Rather, it is consistent with the clerk's prospective duty, beginning on July 1, 2013, to withhold this information from the public.

[10] See, e.g., Va. Code Ann. §§ 17.1-200 through 17.1-295 (2010 & Supp. 2012).

[11] See Va. Const. art. IV, § 14. "[T]he Virginia Constitution 'is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and, except as to matters ceded to the federal government, the legislative powers of the General Assembly are without limit.'" 2009 Op. Va. Att'y Gen. 178, 180 (quoting Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504, 511). There is no constitutional provision prohibiting the General Assembly from requiring clerks to withhold information in this manner.

[12] Va. Const. art. II, § 7.

[13] The clerk, as a constitutional officer, may choose the means by which he fulfills his duties unless the General Assembly has limited his discretion. See, e.g., 2010 Op. Va. Att'y Gen. 92, 92; 2010 Op. Va. Att'y Gen. 17, 18; 2003 Op. Va. Att'y Gen. 60, 60-61. As you suggest, the amendments to § 18.2-308(D) do not specify the manner in which the clerk is to ensure the information is withheld from public disclosure. Accordingly, although you specifically inquire whether the legislation requires you to perform certain redactions, I do not address that explicit issue here; rather I conclude only that the information subject to the amendment, as discussed above, must be withheld.